Muchof Obama's agenda in hands of courts

Health care reform is not the only Obama administration policy tied up in the courts. Others include:

¥ Don't ask, don't tell: Several lawsuits are challenging a ban on gays serving openly in the military, a policy Obama vowed to end. The most prominent case was filed by the Log Cabin Republicans, and is still pending.

¥Immigration: The Obama administration challenged the state of Arizona over its immigration law requiring police to check individuals' immigration status if there is reason to suspect they are in the country illegally. A favorable ruling could clear the way for broader immigration reform.

¥Environment: Numerous lawsuits have been filed challenging the Obama administration's environmental policies, including a case brought by utilities, oil refiners and the state of Texas seeking a delay in implementation of new greenhouse gas emissions rules by the EPA.

¥Offshore drilling: The administration's moratorium on offshore oil drilling following the BP oil spill in the Gulf of Mexico spawned litigation from several industries affected by the ban. The cases and new drilling regulations are pending.

¥Airport screening: At least two lawsuits are challenging the administration's latest policy on air traveler pat-downs by the Transportation Security Administration.

¥Terrorists: The White House recently prevailed in a case filed on behalf of the father of a Yemeni cleric and U.S. citizen, challenging the son's inclusion on a kill-or-capture list of terrorists. The judge in the case said the matter should be for Congress to decide.

From air quality to immigration, much of President Obama's domestic agenda is tangled up in the courts, where judges rather than Congress will decide the fate of his policies.

And, as a federal judge in Virginia reminded the White House this week when he declared a key provision of the president's health care reforms unconstitutional, the courtroom can be a precarious place for the president's priorities.

“The fact that Obama's political agenda is sunken into litigation reflects how deeply the country is divided over fundamental issues,” said Jamin Raskin, director of the Law and Government Program at American University's Washington College of Law.

While the courts, like Congress, provide a constitutional check on executive power, so much of Obama's agenda is now tied up in litigation that the president is losing control of what policies go into effect and when.

That's proven particularly troublesome with Obama's efforts to end the Clinton-era “don't ask, don't tell” ban on gays serving openly in the military. Obama repeatedly expressed the desire to have Congress, rather than the courts, repeal the ban.

But the politics of the issue stalled the repeal in Congress and it now appears likely that the courts could strike down the ban before lawmakers can act, giving the Pentagon less control over the implementation of the new policy.

There have been instances in which court intervention has worked to Obama's advantage, particularly on environmental issues.

Much of the administration's environmental policymaking has been challenged in court, most notably a case brought by oil refiners, utilities and the state of Texas over proposed new greenhouse gas rules.

In that case, and another challenging the administration's moratorium on offshore oil drilling in the wake of the BP oil spill, the litigation allowed the administration to have its way until the courts rule, said Jeff Holmstead, head of environmental strategies for Bracewell & Giuliani.

“It takes such a long time for courts to decide these cases, and in the meantime the government rules stay in place,” Holmstead said.

Having the courts decide big issues in politics is nothing new. Civil rights, Social Security and other domestic polices were settled by the courts. Former President George W. Bush faced a barrage of litigation over his national security policies.

But legal scholars see new trends emerging in how the courts are increasingly perceived and used by both sides.

“Before anyone was injured [by health care reform], we had this rush to the courthouse by parties all over the country, to find one that would go in their favor,” said Charles Rhodes, constitutional law professor at South Texas College of Law.

“That is why this seems to be a little unique — when you are dealing with the number of lawsuits and speeds at which they are filed after the enactment of a law.”

The administration earlier this year challenged the state of Arizona in court over its tough new immigration law, while shying away from pushing comprehensive immigration reform in Congress.

Robert Alt, senior legal fellow at the Heritage Foundation, said the administration was hoping to secure a favorable legal result without enduring the political fallout of a divisive immigration battle.

“Increasingly, from the civil rights era and beyond, you've seen individuals seek to achieve in the courts what they have not been able to achieve through the political process,” Alt said.